Carl Chapman

The concept of “taking” as it relates to eminent domain actions is not always as simple as the transfer of property ownership from a private party to a government agency. In fact, sometimes no tangible property is even exchanged. What really happens is that the proposed actions of the government will destroy the private owner’s interest in or use of the property. Essentially, the private owner will no longer be able to use or enjoy the property, so it has been taken.

Of course, the average person who receives a notice of intent from a government agency is all-but guaranteed to ask, “What is a taking?” Without sophisticated knowledge of eminent domain law, this is a natural question. Knowing the answer can help people figure out how to proceed after being informed that the government needs their property.

Sometimes, the “taking” involves the entire interest of the private owner. In other words, a homeowner will be deprived of their house and the lot on which it stands or the landlord of an office building will lose the entire structure and the land that goes with it. The private owner in both of these examples will be required to vacate the premises so that the government can use it for their own purposes. What happens to the land and real estate after that depends entirely upon the proposed project. Structures may be destroyed and the land may be extensively altered. Whether the project is a public school or a highway interchange, chances are good that it will soon be unrecognizable to its former owners.

Partial takings happen a bit more often. In these cases, only a portion of the owner’s property is seized by the government. A city that wants to build a sidewalk may claim a strip of land that is several feet wide along the front of all the homes on a particular street. In another example, a riverfront home may lose its place on the shore when a county decides to change the waterway’s path. A municipality may require part of a private parcel of land when they are installing new utility services. All of the private property owners in these examples will be able to keep the vast majority of their holdings, with only a small portion of the property being taken by the government. People whose property is subject to a partial taking are still entitled to just compensation. Typically, the amount they are offered is proportional to the amount of property they are losing.

In most cases, “taking” refers to the physical acquisition of property by a government agency. However, “constructive” or “regulatory” taking is different. Constructive taking involves actions taken by a government agency that basically destroy the economic viability of the private property. For example, when the government builds an installation which causes neighbors to be assailed with fumes or strong vibrations, it may interfere with the ability of the owners to fully use or enjoy their property. A court may find that the government’s action constitutes a constructive taking, and that just compensation is owed to the owners, even if the government does not physically acquire or occupy the land.

Temporary takings also occur on a limited basis. This type of taking is most often seen in times of war or massive political unrest. As an example, the military may need to occupy a beachfront home or a strip of privately owned coastline when they are trying to protect the country from invasion. The private property may be given over to the government for a period of weeks, months or years, but it will eventually revert back to the owner. Naturally, the owner will be compensated for losing the ability to use the property for a temporary period.

Takings do not have to relate solely to real estate and land. Other property like trade secrets, trademarks, and contract rights also may be subject to taking by the government. In all of these cases, just compensation is still a requirement.

Whenever a property owner is approached by a government agency with a taking proposal of any kind, it is wise for the owner to consult with an attorney or real estate professional about what is a taking. Constitutional law ensures that all property owners are entitled to just compensation in return for the taking, but it is not always easy for the average person to determine what is just regardless of the type of taking that is proposed.